ביקורת שיפוטית על רשויות אכיפת החוק: בין מינהלי לפלילי

The purpose of this article is to propose a theoretical, normative and positive analysis of judicial review in criminal proceedings and the relief given in the context thereof. The article includes five main sections: in the first section two basic approaches to judicial review in criminal proceedings are presented: (a) a mixed approach,according to which the essence of the review of the authority’s conduct ina criminal proceeding is administrative; and (b) an organic approach,whereby the judicial review of the authority’s conduct is subject to the principles of criminal law. In the second section, three rationales are presented for preserving the separation between criminal law and administrative law, all of which support the organic approach: (a)maintaining proportionality and equality; (b) preserving the quality of penal censure; and (c) avoiding the doctrine of probabilities in criminal proceedings. In accordance with this conclusion, the third section proposes a three-fold classification of administrative remedies that promote principles of criminal law according to the organic approach: (a) an epistemic remedy; (b) a legitimacy-conferring remedy; and (c) a compensatory remedy. The article then analyzes the question of whether the remedy constitutes a condition for conducting the criminal proceeding and whether it does not hit at the heart of the proceeding (an epistemic remedy and a legitimacy conferring remedy) or whether it hits at the heart of the proceeding and also constitutes a consideration in determining the sentence and even guilt (a compensatory remedy). The fourth section of the article points to two parallel developments in the Supreme Court’s rulings:(a) a broadening of the scope of judicial review in criminal proceedings;and (b) a shifting of the geometrical position of the administrative remedy from the gateway to the criminal proceeding to the heart of the proceeding and to the determination of guilt and sentencing. The article analyzes these trends in view of current legal trends. In the final section of the article, an outline is proposed for contending with the challenges that arise in implementing judicial review in criminal proceedings and in granting administrative relief: (a) a distinction between the doctrine of abuse of process and the doctrine of administrative review; and (b) restricting the compensatory remedy solely to the limits of the deserved sentencing range.